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R v Lafo'ou [2023] TOSC 53; CR 50 of 2023 (13 October 2023)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY


CR 50 of 2023


REX
-v-
Seinivunga Lafo’ou


SENTENCING REMARKS


BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC
Appearances: Mrs S. ‘Eliesa for the Crown.
Mrs F. Fa’anunu for the Defendant
Date: 13 October, 2023.


The proceedings

  1. On 28 August, 2023, the Defendant, upon its re-arraignment, pleaded guilty to, one count of theft contrary to section 143(b) and 145(b) of the Criminal Offences Act and one count of forgery contrary to section 170 of the said Act.

The offence

  1. In 2021, the National Rugby League (NRL) office created an account with the Bank of the South Pacific Limited Tonga in the name of Tavakesina Fangupo. Mr. Fangupo is the Country Manager of the NRL Tonga Community Outreach Program.
  2. The Defendant, Seinivunga Sanetify Ki Loto Tatau Lafo’ou, was employed at the NRL head office situated at Ma’ufanga. The debit card for the relevant account was locked in the Defendant’s office. The pin number for the said debit card was known only to Mr. Fangupo and the Defendant.
  3. On 1 December 2022, when Mr. Fangupo went to pay the office rent, he discovered he could not make the payment due to insufficient funds in the account. He enquired at the bank and received a bank statement revealing withdrawals from various ATM machines in the Nuku’alofa and Ma’ufanga area between the months of October, 2021 to November, 2022 amounting to $34,300.00. Mr. Fangupo contacted the Defendant to meet him at the Coffee Post to talk.
  4. On 2 December 2022, the Defendant gave Mr. Fangupo a letter from Ms ‘Amelia ‘Asi, her co-worker, admitting to withdrawing the money. On 6 December 2022, the Defendant told the Complainant she would take the blame for the offending to prevent ‘Amelia from going to prison because of her 6 children.
  5. On 14 December 2022, Mr. Fangupo met with ‘Amelia who admitted responsibility for one withdrawal under the directions of the Defendant. She confirmed to Mr. Fangupo that she did not give the Defendant a confession letter for the withdrawals.
  6. Mr. Fangupo lodged a complaint about the missing funds with the police on 15 December 2022.
  7. On 6 January 2023, ‘Amelia in a statement to the Police said that on 15 November 2022, the Defendant instructed her to withdraw $750 from the material account to pay the Defendant’s loan. Amelia made the withdrawal at the Cowley Bakery ATM machine and then put the receipt and the debit card in the Defendant’s draw.
  8. On the same day the Police arrested the Defendant. When interviewed, she admitted to withdrawing the money from the relevant account starting from October 2021 to November 2022. She used the money to pay her father’s loan and for her own personal needs. She apparently intended to pay it back.
  9. The Defendant admitted to directing Ms. ‘Asi to make the withdrawal she made as well as preparing a confession letter and signing off as Ms. ‘Asi and presenting it to the Complainant. She said she did that because she was afraid of admitting her actions to the Complainant because he trusted her. She admitted she had no right to the money she withdrew.

Crown’s submissions

  1. The Crown submitted the aggravating features to be:
  2. The Crown submits the following as mitigating features;
  3. The Crown referred to the following comparable sentences:

Kaufusi anor v Rex [2014] Tonga LR 252 –Mr. Kaufusi and his wife were convicted of embezzlement and falsifications of accounts. He had stolen a total amount of $41,301.03 over a period of time on 48 occasions. Mr. Kaufusi pleaded guilty after the Crown closed its case. Cato J adopted a starting point of 3 years and 9 months imprisonment and allowed 13 months by way of mitigation for his belated guilty plea, previous good character and that his family had repaid the money. He was sentenced to 2 years and 8 months imprisonment with the final 9 months suspended for 2 years.

Mr Kaufusi appealed. In dismissing the appeal, the Court of Appeal recognized that when compensation is made, a meaningful allowance is important as it lessens the impact of the crime on the victim and provides an incentive for reparation. Notwithstanding that, the Court of Appeal opined that “unless the sentencing Judge has made an error of principle, we are not at liberty to interfere unless the sentences are manifestly excessive.”

(a) R v ‘Ilona Maria Ika, Supreme Court, CR 187 of 2020 – the accused pleaded guilty to one count of theft. She was an employee of the ANZ Bank from 2012 until her dismissal in 2020. She withdrew $2,000.00 on nine separate occasions making it a total of $18,000.00. When confronted by the Bank, she denied the allegation and blamed the customer. Two days prior to her arraignment, her family made a full repayment of $18,000.00. A starting point of 2 years imprisonment was set with a 6 months deduction for her guilty plea. For the full restitution made, a further 6 months was deducted leaving a final sentence of 12 months imprisonment. Despite the Defendant’s youth, clean record and good prospects for rehabilitation, the court did not consider a full suspension appropriate and opined that:

“.....to do so would not provide an effective deterrent to others in similar positions of trust who may be tempted to breach that trust and steal from those whom that trust is owed.”


Accordingly, only the final 6 months of the remaining 12 months was suspended on conditions.

(b) Rex v Filimone To’aho, Supreme Court, CR 24 of 2021 – the Accused pleaded guilty on the day of trial, for theft. He took a loan of $17,767.81 from the Complainant’s finance business to purchase 20 motor vehicles. The vehicles were pledged to the complainant as security for the loan. In lieu of the loan the Defendant was to give the complainant 2 vehicles and sell the rest to repay the full amount loaned. The Defendant paid back $17,000.00. A starting point of 22 months was imposed with a reduction of 5 months for his previous good record and late guilty plea. For the restitution of majority of the funds stolen, a further 5 months was deducted resulting in 12 months imprisonment. The court said that the offending was relatively unsophisticated and short-lived compared to Ika and suspended the Defendant’s sentence in full. The court also ordered the payment of the undisputed balance of the debt.
(c) R v ‘Ekuasi, Supreme Court, CR 3 of 2022 – the Accused pleaded guilty on the day of trial to one count of obtaining $6,976.24 by false pretence, and 2 counts of forgery in the form of creating false receipts for $2,000 and $4,100. A starting point of 18 months was set for the false pretence charge, 9 months for the $2,000 forged receipt and 12 months for the $4,100 forged receipt. This was reduced by 25% for mitigation; her late guilty plea and previous good record. Whitten LCJ considered the forgery charges as separate offences, therefore warranted partial cumulation by adding two months from each sentence to Count 1. This resulted in a final sentence of 18 months imprisonment, fully suspended on conditions.
  1. In this instant proceeding the Crown submits the following sentencing formulation:

Defendant’s submissions


  1. Mrs Fa’anunu, for the Defendant, submitted the mitigating features in favour of her client were:
    1. The Defendant is a first-time offender and has a good record;
    2. She is young, single and has her whole life ahead of her;
    1. She pleaded guilty, albeit late;
    1. She is a talented individual and has represented Tonga playing netball and actively participates in Tonga’s netball’s activities;
    2. There are opportunities for her if she returns to New Zealand;
    3. Her expressed remorse on many occasions to Mr. Tavake Fangupo in her letter dated 13 December 2022, when she was interviewed on 6 January 2023 and a subsequent meeting with Mr Fangupo in the FAPS office;
    4. She is capable of being rehabilitated; and
    5. She has paid $34,000 in full to the NRL Tonga.
  2. The Defendant relied on Mo’unga v R [1998] TOLawRp21; [1998] Tonga LR 154 (7 August 1998), ‘Eukaliti v Police [1994] TOLawRp 15 [1994] Tonga LR 80 (15 August 1994 and R v ‘Ofa [2021] TOSC 6; CR 316 of 2020 (29 January 2021) to submit that a fully suspended sentence was appropriate.
  3. I also note that supplementary submissions were filed for the Defendant which attached letter from her parents, the Chief Executive for the Tonga Netball Association and an email from Ms. Asi, in support of the Defendant’s good character.

Pre-sentencing report


  1. The Probation report records the Defendant as 30 years old and youngest of 7 children. Her family, moved to New Zealand when she was two years old. She attended Southern Cross Primary School in Auckland and then Omaru’s Girls Waitaki High School. After high school, she took travelling courses and was a member of a Southern netball club.
  2. In 2018, her family travelled back to Tonga for a holiday. While here, the Defendant participated in a netball tournament and when her family returned to New Zealand, she stayed back to complete the tournament and seek employment with the Tonga Netball Association. When that did not happen she found employment with the NRL office as an administration officer.
  3. It was reported that the Defendant’s sisters have visited to support her after the offending. She is healthy and relies on her family and relatives overseas for financial support.
  4. The Defendant told the Probation officer that she conducted the offending secretly for personal needs. She has accepted the charges and had attempted to apologize to the NRL Tonga Manager. She told the officer that her family had amassed the full amount she took to settle the case but was rejected by the complainant.
  5. It was also reported that Leone Vi, one of the Defendant’s co-workers, spoke well of her commitment and dedication to the work and development of NRL and how she is an important member and the “main factor” behind the current development of NRL Tonga. She was reported to regret and is remorseful about what has occurred and willing to pay back the money taken.

Starting point


  1. The maximum statutory penalties for theft and forgery is 7 years imprisonment respectively. I accept the Crown’s proposition that the headcount is the theft.
  2. The present offending involved 46 systematic unauthorised withdrawals over a period of 13 months with the last withdrawal made just two days before the complainant discovered he could not pay the office rent from the account. Once her offending was detected, the Defendant’s first reaction was to deflect the blame to a co-worker whom she had instructed to make one unauthorised withdrawal for her. Then forged a letter from that co-worker to absorb the blame. The criminality is further aggravated, by the fact the funds stolen were a grant from the Government of Australia for the development of NRL in Tonga, thereby extending the theft to the generosity of that country and the Tongan youth in NRL for whom the grants were intended.
  3. Mrs Fa’anunu in her supplementary submissions referred to the principle endorsed by Mo’unga that imprisonment for purely property offences was not appropriate. She challenged the Crown’s position that imprisonment was necessary in this instant. She argues that the principle could be interpreted in many ways and pointed to R v Guttenbeil[1] where the Defendant was convicted for manslaughter and whose sentence was fully suspended. In that case, the charges and therefore circumstances are distinguished.
  4. Mrs Fa’anunu is correct in her reference to the view in Mo’unga but it overlooked the remainder of the principle that “imprisonment for purely property offences was not appropriate, unless unusual circumstances render imprisonment necessary.”
  5. The court has previously held unusual circumstances that render imprisonment necessary in property offences, the existence of the following factors:
(a) premeditation, carefully planned and co-ordinated and exploitation of another to commit the offending at offender’s behest[2];
(b) the offending being a major, carefully planned operation, demonstrated by offenders arming themselves with the necessary equipment and vehicle, selecting premises known to have quantity of goods and removal of large quantity of goods that it can only be regarded as a commercial operation for profit[3];
(c) factors of trust, amount of cash involved and systematic nature of offending[4];
(d) the level of premeditation, contrivance, and the fact that the offending was not just a single event but was orchestrated over a period of at least two months[5].
  1. In the present case, it can be said that the elements in (a), (c) and (d) exist and I am therefore satisfied that imprisonment is expected.
  2. Accordingly, having regard to the maximum statutory penalty, the seriousness of the offending discussed above, the principles above and that of deterrence, denunciation and condemnation of these types of offending, I set a starting point of 3 years imprisonment for the theft and 9 months for the forgery.
  3. For her late guilty plea and good record, I accept the Crown’s position and reduce the starting point for the theft by 9 months. For the full compensation, I deduct a further 9 months resulting in a final sentence of 18 months imprisonment for the headcount.
  4. I consider the forgery a distinct category of dishonesty to the theft and therefore add 2 months of that sentence to the headcount resulting in a final starting point of 20 months imprisonment.
  5. The Defendant relied on Mo’unga, Eukaliti and ‘Ofa in support of a fully suspended sentence. Eukaliti involved housebreaking and theft and was in the jurisdiction of the Magistrates Court and ‘Ofa involved theft from a family member, i.e and uncle where the court considered the cultural values attributed to such a relationship.
  6. Here, I have considered the positive attributes of the Defendant, her talent, future opportunities, the support from her family, letter from her parents, her volunteering with the Tonga netball and expression of regret to NRL. Notwithstanding that, she continues via her counsel’s submissions to distance herself from her actions by insisting she is unable to confirm the full amount she withdrew, demonstrating, at least in my view a lack of remorse. However, this has not aggravated my view against her entitlement to some suspension in light of the full compensation made.
  7. Having said that, I adopt the position in Ika and the opinion of the court set out at paragraph 13(a) above and being mindful that the duty of the court is to sentence in the public interests and to protect individuals[6] including organizations such as NRL. For that reason, I am unable to fully suspend the sentence I impose.
  8. Against the considerations in Mounga, the Defendant is neither old or young, but this is her first offending and she cooperated with the authorities. I believe that she will respond positively to a partly suspended sentence and use the opportunity for rehabilitation. Accordingly, I suspend the final 12 months of her sentence on conditions.

Result


  1. The defendant is convicted for theft and is sentenced to 18 months imprisonment.
  2. Two months from the sentence for the forgery is added to the headcount resulting in a final sentence of 20 months imprisonment. The final 12 months of her sentence is suspended for a period of 2 years from the date of her release from prison on the condition that during that period she is to:
  3. Failure to comply with those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of her prison term.
  4. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 8 months in prison.
  5. The Defendant is to be given credit for any time spent in custody on remand for the charges the subject of these proceedings.
NUKU’ALOFA
P. Tupou KC
13 October, 2023
ACTING LORD CHIEF JUSTICE

[1] [2015] TOCA 1;AC 1 of 2015
[2] Valikoula v R [2021] TOCA 5
[3] Mounga v R [1997]
[4] R v KOLOMALU
[5] R V Ekuasi [2022] TOSC 94
[6] Eukaliti

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